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March 27, 2014

Some background and sentencing readings related to Ninth Circuit CJ Alex Kozinski

Kozinski-alexAs I have mentioned, on Wednesday April 2, we will have the honor and pleasure of having Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, visit our class. For basic background on this renown jurist, check out his Wikipedia entry and/or this (dated) Unofficial Judge Alex Kozinski Site and/or this 2005 Legal Affairs profile.  That profile has this headline and subheading: "THE BIG KOZINSKI; If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster."

Because he has written opinions and commentaries on every subject under the legal sun, it would be almost impossible to read even a small sample of all his views.  Fortunately, though, he has written a few especially high-profile (though now somewhat dated) pieces about death penalty jurisprudence and federal sentencing jurisprudence.  Here are links to a few highlights from this part of CJ Kozinski's corpus:

Concerning the death penalty, check out this lengthy co-authored 1995 op-ed in the New York Times given the headline "For an Honest Death Penalty." It starts this way:

It is a staple of American politics that there is very strong support for the death penalty; in opinion polls, roughly 70 percent consistently favor it. Yet the popular will on this issue has been thwarted.

To be sure, we have many capital trials, convictions and death sentences; we have endless and massively costly appeals; and a few people do get put to death every year. But compared to the number of death sentences, the number of executions is minuscule, and the gap is widening fast.

Note that, back in the early 1990s when this op-ed was authored, thoughtout the US there were often 300 death sentences imposed and only about 30 executions each year. Lately, in contrast, we have had in the US only about 75 death sentences and 40 executions each year.

On the topic of federal sentencing, I succeeded way back in 1999 to get CJ Kozinski to author this article for the Federal Sentencing Reporter a full five years before Booker made the Guidelines advisory.  It starts this way:

Once or twice a year I sit as a trial judge, usually in a criminal case. I've been doing it for many years and never cease to learn something new. I started before the Sentencing Guidelines, so I have sentenced defendants both with and without the Commission's guidance. I've had my doubts about the Guidelines; I even wrote an opinion saying they were unconstitutional. Doubts sometimes resurface when I sit as an appellate judge, but I have no doubts when I sit as a trial judge: I like the Guidelines and hope they're here to stay.

I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison. Some judges may have the wisdom of Solomon in figuring out where in that range to select just the right sentence, but I certainly don't. Would too heavy a sentence destroy a young life and snuff out any chance of rehabilitation? Would too light a sentence embolden the defendant, endangering the lives of innocents? What deterrent effect will the sentence I impose have on others?

Deciding whether someone spent the next twenty years in prison or got straight probation was a burden almost too heavy to bear. Somehow I felt it was wrong for one human being to have that much power over another. Imposing sentence was, for me, almost an act of sacrilege.

Nor did it help that there was no appeal from the sentence. On the contrary, the very finality of the decision made it all the more difficult. If the sentence had been subject to appeal, someone else could have told me if I was way off the mark. But with no sentencing appeals, the burden lay entirely on my shoulders, and I didn't like it a bit.

Enter the Sentencing Guidelines and all this changed for the better. Gone are the wide open spaces for sentencing discretion. Sentencing ranges are narrow and presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition--they're all engineered into the machine; all I have to do is wind the key. The Probation Officers in the Central District of California, where I mostly sit, do an excellent job and there are seldom disputes over the accuracy of the PSR. When there are, I do what I am competent to do--make factual findings.

Once I have figured out the range, I always sentence at the very bottom; I never depart up or down, unless it's a guided departure like substantial assistance or acceptance of responsibility. This is true whether a defendant has pleaded guilty or proceeded to trial; generally, I have found that the bottom end of a given Guideline range sufficiently captures a defendant's criminal culpability, and I very seldom run across a case so unusual as to warrant departure. If the sentence seems too harsh or too light, I no longer feel responsible.

March 27, 2014 in Class activities, Death penalty history, Who decides | Permalink


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This is a very interesting article about how a judge thinks about sentencing someone to death, written by Judge Kozinski: http://faculty.polytechnic.org/gfeldmeth/14.kosinski.pdf. I believe the Kozinski website lists it, but doesn't provide a link.

Posted by: Adam P. | Mar 29, 2014 6:16:01 PM

I am intrigued by how the Sentencing Guidelines have affected the discretion of sentencers other than judges. I agree 100% with Judge Kozinski that the Guidelines have at least minimized (post-Booker)the vast sentencing ranges that judges might impose for the exact same crime.

That being said, judges are not the only entities that contribute to the sentencing decision. Consider police officers and mandatory minimum sentences. Now that a detective knows exactly how much cocaine a person must possess in order to reach a mandatory minimum prison sentence of x years, nothing is stopping him from selling that exact amount in a sting operation. I'm not sure if this is good or bad, but it's certainly a detective exercising discretion as a sentencer. Looking at the big picture, the Guidelines don't seem to eliminate discretion as much as they shift it. And it's worth considering who we want, as a society, to possess this discretion.

Posted by: Kris Missall | Mar 30, 2014 5:47:42 PM

In Judge Kozinski's article for the Federal Sentencing Reporter he wrote that "I found sentencing traumatic in the pre-Guidelines days. The sentencing range often spanned many years, sometimes all the way from probation to life in prison." I wonder if he finds sentencing traumatic again post-Booker where he has more discretion in the sentences he hands out than he had under the Sentencing Guidelines. I would guess that he does not find sentencing as traumatic as it was in the pre-Guidelines days, but I'm curious to hear how he feels about being given more discretion back in sentencing post-Booker.

Posted by: Max Reisinger | Mar 31, 2014 5:26:13 PM

For more information about Chief Judge Kozinski and his career, check out this video: http://www.youtube.com/watch?v=dUYpBqLVe7U

Posted by: Cheyenne C. | Apr 1, 2014 12:50:05 AM

I found it interesting that in Chief Judge Kozinski's talk that he seemed to argue that anti-DP individuals should not be upset by the DP since it's actually kinder than imposing LWOP. While I found his argument interesting, I do think it relies on one possibly faulty assumption: that all individuals who are against the DP are also for LWOP.

I thought a lot about what he said after class and I think I may agree with him that sometimes, especially for younger individuals, LWOP is probably in many respects worse than a death penalty. I cannot imagine being imprisoned for the rest of my life, perhaps with solitary confinement, and with no say in what I do, when I do it, what I eat, etc. I personally am against the death penalty, for numerous reasons, and what he said in class really made me think about my view on the death penalty. But instead of deciding that the death penalty should be permissible since it is less cruel than LWOP, I think he actually convinced me that both the death penalty and LWOP should not be permitted.

Posted by: Katie W. | Apr 10, 2014 9:29:16 AM

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